March 6, 2006

A unanimous Supreme Court on Monday upheld the "Solomon Amendment" that assures military recruiters they may seek to sign up students at the nation's law schools. The Court ruled that the military must be given access even though it violates the law schools' policy against facilitating discrimination against homosexuals. Moreover, the Court declared, law schools could not exclude the military even if they also excluded all other potential employers that declined to hire gays and lesbians.

Chief Justice Roberts writes the opinion. There are no additional opinions. (Alito, of course, does not participate.)

As the unanimity indicates, this outcome was not at all surprising. Here's my post on the reports after the oral argument, at which point it was rather obvious that the government was going to win.

(I dread seeing all the opinion pieces that connect this case to "Brokeback Mountain" not winning the Best Picture Oscar.)

MORE: From the case:

The law schools object to having to treat military recruiters like other recruiters, but that regulation of conduct does not violate the First Amendment. To the extent that the Solomon Amendment incidentally affects expression, the law schools' effort to cast themselves as just like the schoolchildren in Barnette, the parade organizers in Hurley, and the Boy Scouts in Dale plainly overstates the expressive nature of their activity and the impact of the Solomon Amendment on it, while exaggerating the reach of our First Amendment precedents.

YET MORE: I want to express my deepest thanks to Chief Justice Roberts for gathering the Justices onto one clearly written opinion. There is no blather or hedging in the prose. He has obviously taken great pains to put every sentence in plain English. He deals with all the precedents, handling most of the cases in one or two crisp sentences. You may not appreciate how beautiful this thinking and writing is, but I do, and I think generations of law students will.

55 comments:

What is in the water at law schools that caused them to foolishly claim that preventing speech of a group they opposed was in the best interest of free speech? Normally you'd expect better reasoning skills in these institutions.

The opinion is very crisp! as you expect from C.J. Roberts. It really is amazing, patiently but tersely reaffirming all of the Court's prior First Amendment cases, without expanding or narrowing the law at all. Then at the end, essentially slamming the law professors for not really understanding the law at all.

Bob: I think there was something expressive about bringing the lawsuit, and then there was just an effort to make the best arguments for the outcomes the schools (including mine) wanted. The real opposition, however, is to the military's discrimination against gay people, which really should be changed. This lawsuit did call attention to that cause, if awkwardly, and there was some point to that even if we expected to lose. There is a history to using litigation for political purposes, and even losing cases can be effective.

My favorite line, at page 15: "We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy. ... Surely students have not lost that ability by the time they get to law school."

Ann, If law schools oppose restrictions on gays then surely they would support a ban on contact from those who initiated the action--congress and the Clinton administration. The military has no ability to unilaterally declare such things.

Ann, If law schools oppose restrictions on gays then surely they would support a ban on contact from those who initiated the action--congress and the Clinton administration. The military has no ability to unilaterally declare such things.

Exactly. If the board of directors of a company created a policy that one of its subsidiaries would not be able to hire open homosexuals, a school that banned recruiters from organizations that didn’t comply with their “anti-discrimination” policies ought to ban recruiters from the company rather than just the subsidiary – particularly when it’s the parent company that sets the policy.

This was simply a case of folks that don’t like the military using DADT as a fig leaf to keep military recruiters off campus.

This was simply a case of folks that don’t like the military using DADT as a fig leaf to keep military recruiters off campus.

Are there other branches of government that discriminate so openly against gays and lesbians? I can't think of any off the top of my head. If you can list them, I'll consider your reasoning. Until then, I'll assign the filing of this lawsuit to a token protest against the military's costly and short-sighted policy.

Very crisp decision. If this keeps up, maybe Ann will be out of a job teaching Con law (said in jest, of course). There was almost no wandering all over the place, as we have seen in the fairly recent past. Each argument by FAIR and the 3rd circuit was taken in turn, and demolished in short order.

I think though that the thing that made the result a foregone conclusion is the repeated point that Congress could have done this directly, mandating that schools give access to JAG recruiters. Indeed, they could have just drafted the top 10% of every graduating class. The Supreme Ct. was not going to bar Congress from doing something indirectly that they could have done directly.

Roberts manages to seem reasonable without the rhetorical excess and logical flabbiness of Kennedy by assembling narrowly conservative opinions like Rehnquist without failing to decide the pending case like O'Connor or alienating half the bench like Scalia; and unlike a provocative law professor, he is able to exercise discretion by keeping tangential issues tangential, for which I applaud him.

The purpose of this term's unanimous opinions, it appears, is to restore confidence in the court as a venerable institution of fundamental law. The Supreme Court is (and outght to be) the entity that finally interprets the law, not the trade association of political action committees.

I wonder what Ann thinks of all these federalism cases brought by States against the federal government by state attorneys general who formerly clerked for the Supreme Court. It seems we are witnessing the conservative counterpoint to the Eliot Spitzer phenomenon in Ted Cruz, Greg Abbott, et al.

The military policy on homosexual activity may be short sighted or costly, but it was set by Congress, and the Court pointed that out. Yes, the military made suggestions to Congress, but in the end, Congress and the (former) president acted, and the military is only obeying the rule of law, enforcing a statute enacted by Congress.

Interestingly, this may be some indication that this Court will defer a bit more to Congress, esp. when exercising core functions.

as far as the connections to a movie not getting an oscar for best picture, i can only imagine the less-thoughtful people like bill oreilly will make such a simpleton conflation of the two.

i already envision tonight's 'talking points' on oreilly, claiming victory for 'middle america'. it will give comfort to those (including some in your oscar commentaries last night) who like to run with bill down this causal slippery slope; in this case the false notion that hollywood's financial ills are the result of their 'politics', and their not making films for 'middle america'

oreilly, if predictable as usual, will try to reach such a conclusion (which is about as accurate as his initial assertion that brokeback 'was not doing well in the theatres'). but to the rest of us who aren't looking for some kind of 'victory' against one group or another know that solomon has not one whit to do with an oscar snub for brokeback.

incidentally, that 'snub' is on the face more interesting than a very expected solomon ruling.

one, it can be argued that academy voters (the majority being gray-haired old liners from irene dunn's era) felt more comfy with a film that, although not at all original subject matter (look up 'grand canyon' in imdb.org), was about their little back yard.

secondly, it's a very little known fact that the academy is full of politicking than can be deftly exploited.

to their demise, brokeback chose to let the movie stand for itself, while crash worked the system behind the scenes and overtly via questionably authentic blogger posts and a dvd release at the last minute, and an overwhelming marketing push to go with it. if you live in la you know exactly what i mean.

had 'capote' won, i'd been less surprised and felt that it was a genuinely thoughtful decision between two great films. 'crash' was a good film, but neither original nor the 'best' of a very talented bunch.

however, they're all movies, and this was nothing more than 'american idol' for the sequined gown harry winston set.

solomon, on the other hand, is not "a win for the good guys", as one side-taking poster here claims.

it's a shameful stain on our country that deserves a place in the academy-worthy montage of hypocritical politics from the beloved clinton administration.

As a law student, I appreciate unanimous opinions and opinions in which there is one dissent and no concurrance.

Having said that, I don't think its a big deal that Roberts "brought the court together" for this 8-0 decision. The oral argument was pretty one-sided, and it seemed pretty clear to me at least that there wouldn't be much dissent on this one. Sure, its not, but then its not exactly Roe v. Wade, a unanimous decision that was arrived at only after much lobbying and persuading and whose unanimity gave it the moral authority it otherwise might have lacked.

I'm not sure that bringing losing cases is a good long-run political strategy. It surely wasn't the strategy of Thurgood Marshall and the NAACP, who tried to bring incremental winning cases. But I'm more concerned about the morality of a privileged group like law professors consuming public resources on purely expressive and wholly ineffectual activity when there are so many greater needs unmet. It seems feckless and self-indulgent to me.

I'm not sure that bringing losing cases is a good long-run political strategy. It surely wasn't the strategy of Thurgood Marshall and the NAACP, who tried to bring incremental winning cases.

I think the difference between the NAACP's successful midcentury legal campaign and this Solomon Amendment affair is that with the former, those bringing the suits were trying to overturn a longstanding line of precedent, and had to lay a very careful groundwork in isolating those precedents. Here, I don't think the law schools are all that invested in altering our first amendment jurisprudence. They just want to gin up public outrage over Don't Ask Don't Tell.

I hope this unanimous decision sends the clear signal to other litigants. When on the Federal dole, the Feds can make the rules. The pending law suits over NCLB should die in the district courts. I completely disagree with your advocating the use of litigation as a protest. Seeking Judicial remedy is a protest of democracy, an end run around public debate.

But I'm more concerned about the morality of a privileged group like law professors consuming public resources on purely expressive and wholly ineffectual activity when there are so many greater needs unmet. It seems feckless and self-indulgent to me.

Here, here. If they have enough funds to file symbolic lawsuits to push their own political agendas, then they shouldn’t be asking for the rest of us to pay more taxes to support their institutions.

It sounds like you've predicted the subject of Frank Rich's next column (the opinion pieces that connect this decision to Brokeback Mountain)! Fortunately, he's walled off in the world of Times Select, so I don't have to pay any attention to his mind-numbing rants!

"The schools respond that if they treat military and nonmilitary recruiters alike in order to comply with the Solomon Amendment, they could be viewed as sending the message that they see nothing wrong with the militarys policies, when they do. We rejected a similar argument in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980). In that case, we upheld a state law requiring a shoppingcenter owner to allow certain expressive activities by otherson its property. ... The same is true here."

I love the implicit comparison of law schools to shopping malls. It gives a whole new meaning to the marketplace of ideas.

In Section 3B, CJ Roberts talks about alternate means of challenging the statute based on freedom of association grounds. What do you think the merits might have been to arguing that the grandfather clause type exception made for institutions with "a longstanding policy of pacifism" creates an adverse condition for each other institutions making "group membership less attractive"? By forcing the law schools to appear morally hypocritical, some students will be driven to schools who have been granted an exception...

No, the real comparison is with what's going on at Yale, not some movie.

Sayed Rahmatullah Hashemi, former deputy foreign secretary of the Taliban, is now a student at Yale. The spokesman for a regime that debated whether homosexuals should be buried alive or have concrete walls pushed on them, is now there, taking the place of an American student. A spokesman for a regime that executed women in soccer fields caught trying to teach themselves how to read, is taking advantage of America's elite institution. An official of a regime which fought Americans mere months ago on the field of battle is now at Yale.

And yet that institution continues to resist implementing ROTC for students willing to defend their country.

What am I missing? Has the academy gone insane?

Spare me the: it's not an-anti-military decision crap, folks - no argument is easier to refute - how so? The schools than banished ROTC made no mention of gay rights when they abolished ROTC in the sixties and seventies. They did not want a military prescence on their campus - virtually in every case the statement given by the school said this. (I researched this for a law review article awhile back.) Nothing about gay rights.

That later became a convenient excuse when the non-academic world (um..not you Ann, of course :)) in the last two decades began to appreciate their military again. Campus radicals were at least honest about their aims back then. Although, a few still are honest today I have to admit having read this Campus Activist page:

The best part of the opinion comes at the end where CJ Roberts takes a subtle jab at the law schools for trying to pawn themselves off as mere children and parade organizers. The mental image this evokes is hilarious.

I like you so, I regret that Sean reflects my views . I just threw in the wastebasket a dinner invitation which was going to be a pitch to contribute to the law school. I used to be a bencher and a regular contributor (along with my husband) to the alumni fund. No more. Between the undergraduate admissions office refusing to come clean on their minority enrollment figures and the law school wasting good money to pursue this case, I will not make a single contribution to any of the University of law school's general funds.(Of course, I expect the law school will bow as well to the ABA's proposal you break the laws on admission, too.)Instead I'll contribute to small programs I believe are not run by liars and the terminally clueless.

I agree that it's a crisp, well-reasoned opinion, but do you think a reader can make anything of the fact that, unlike in other recent cases involving sexual orientation, Roberts never once uses the word "gay," only "homosexual"? (I notice Scalia does this too.)

The real opposition, however, is to the military's discrimination against gay people, which really should be changed.

Ann, you've argued this week against the proposed ban on same-sex marriage in Wisconsin, and now pointed to the real issue in Solomon, and taken the above position. Thanks. I read this blog because, despite our intractable disagreement over W, I respect your core values.

I didn't join the earlier marriage discussion, out of just being tired of it. I really appreciated your participating as you did, and being a strong advocate.

I hope this is a trend for Supreme Court opinions: unanimous, short at 21 pages, clear analysis and respectful of the arguments made by the parties.

The opinion gives us a a reasonable result, reasonably explained. I particularly liked the statement on page 18 of the slip opinion that when congress has the power to act, methods are a decision for Congress not the Court.

Richard said..."Roberts never once uses the word 'gay,' only "homosexual"? (I notice Scalia does this too.)"

Perhaps because he means by the term "homosexual" both gays and lesbians, the term "homosexual" being genderless? To do otherwise, you have to either a) decide that "gay" is a blanket term for gays and lesbians (in which case, being that "lesbian" is the adjective for a definitely female homosexual, what is the adjective for the definitely male homosexual?) or b) drift into the endlessly pretentious alphabet soup with which the homosexual community likes to clothe itself - LGBTQABCDEFGETC. To avoid this horribly needless and confusing silliness, what is needed is a single term that is gender-free, that includes gay men and lesbian women and those people who can't make up their minds - a term such as...uh..."homosexual." I suspect the resistance comes purely because of an imagined opprobrium implied by the term.

I am old enough that "gay" still has as its primary meaning to me "joyful" or "frivolous" or "bright". This can lead to misunderatnding as when I referred to a proposal for yellow paint and aqua/yellow print curtains in a room as "gay colors"-- in California no less. In my defense the discussed purpose of the remodel was that the room was too dark.

To my mother a "gay" woman was one whose clothes were too revealing, went out with too many different men, and might possibly have unreported taxable income.

Better to use a term without other meanings. What would "same sex" be in Latin to avoid the male connotation of homosexual?

I'd meet your mother's definition of gay, too, at some point in my life. Back in the early '90s, the Centers for Disease Control issued a set of criteria for deciding what women could be considered gay. The upshot was that a gay woman is one who hadn't had sex with a man in 10 years. As one of my lesbian friends quipped, "Gee, that means my mom is gay and I'm not!"

Usage noteMany gay people prefer not to be referred to by this term, feeling that being known as "gays" depersonalises them and reduces them to little more than their sexual orientation. The terms they prefer use gay as an adjective only (as in "gay men").

I see. So the inference is, given the arch-Conservatism of both Scalia, and now by opinion word association, Roberts, their usage of homosexual is derogatory?

Eh. I still like homosexual better.

Gives it a powerful air of authority -- one wouldn't like to mess with a homosexual in a dark street.

Until then, I'll assign the filing of this lawsuit to a token protest against the military's costly and short-sighted policy.

The military has no policy against homosexuals serving in it. An Act of Congress makes homosexual activity by members of the service a crime. The only way the military could change this is by a general mutiny and the creation of a military junta.

Anyone who actually cared about changing Congress's policy on homosexuals in U.S. service would put pressure on Congress. The law schools, rather than taking action against Congress, took action against military recruiters. It is accordingly clear that they were not genuinely concerned with the Congressional policy, but merely found said policy a useful flag of convenience under which to to take potshots at the military.

I mean, c'mon, these are law schools. Thirty minutes of research on the Uniform Code of Military Justice would have made it clear that the military has no power to enforce any policy on homosexuals other than the policy dictated to it by Congressional Act.

1) the threat to take away ALL funding from a university because its law school refuses to go out of its way to help the military recruit is excessively punitive retribution

2) I'd like to see Harvard, Yale, the University of California system, and the Universities of Washington and Wisconsin refuse to allow military recruiters into their law school, then see how the Federal government scrambles around to start new defense, engineering, cryptography and bio-medical programs from scratch and on short notice

3) The military doesn't need these lawyers anyway. It already has a lot of lawyers, and indeed has its own ROTC program to create a steady flow of young lawyers into its JAG program. This is merely a power grab to force something down the throats of campus intellectuals who are among the military's most vocal political opponents.

What a laugh that is. As if they would forego the money and as if there were no comparable schools which would take it.(Hint:The Ivies engineering schools are about the worst in the country.)

Moreover, this "symbolic" fight resulted in the unanimous Court ruling that even without the grants Congress has the right to compel recruitment on campuses.So even if they forego the money, if Congress directs they must, the schools would have to allow recruiting.

Altogether the universities have behaved abominably. As we desperately need Arabic speakers and those with knowledge of the Middle East, many of them have barred recruitment of students who fit the bill on their campuses, too.

As if the richly endowed American universities could exist and exist so well without the contributions of those who die to overseas in our service.

This has been the worst hour for American colleges and universities. (And they weren't all that great, especially in the Ivies, as Hitler was beating his plowshares into swords.)

CF - I don't know what you mean by your Hitler comment, but I'm certain that students from the Universities of Kansas and Arkansas were going to Canada in droves to enlist when Hitler invaded Belgium and started killing Jews.

Also, since you brought it up, the military has dishonorable discharged a LOT (something like 70) fluent Arabic and Farsi speakers over the past five years because they violated the don't ask, don' tell policy. What's more important, protecting our country or protecting our poor, sweet, innocent little soldiers from ever having to interact with big, scary homosexuals?

Robert, your faith is strong but it makes little sense. How can the government ask, if the policy is don't ask? The fact is the policy doesn't work. Nor should it. We should get rid of it, and allow people to serve.